Both Robert Aaron Long and Ahmad Al Aliwi Alissa were arrested last month for allegedly carrying out high-profile shootings that killed large numbers of people. Both crimes have revived our national gun debates.
But only one of the men has a realistic chance of ending up on death row.
Colorado, where Alissa will be tried, is one of 23 states that have abolished the death penalty. Georgia, where Long was arrested, is one of 27 who still have punishment in the books. It is also among a smaller subset of 15 states that have actually executed someone in the past decade, according to the Death Penalty Information Center.
And there’s California, where Aminadab Gaxiola Gonzalez was arrested last week, suspected of killing four people, including a child. The death penalty there is more of a symbol than reality: the governor of California, Gavin Newsom, has ordered a moratorium on executions, which had not been carried out in the state since 2006. But local prosecutors often send people to death row by that equates to a phrase virtual life. Orange County District Attorney Todd Spitzer has already told reporters that he will consider the death penalty for Gonzalez.
State laws are only part of the picture, because depending on the investigations, the Department of Justice can launch itself and seek death sentences for federal crimes. The fate of these men will be dictated by decision makers, from local district attorneys to Attorney General Merrick Garland, and will serve as the most recent examples of the strange geographical disparities in American capital punishment.
The death penalty is disappearing: although Georgia still executes people, the entire state has sent only one person to death row since 2015. Across the country, it is now clear that if you are going to receive the death penalty it has less to do with what you did than where you did it. In 2013, the Death Penalty Information Center reported that all state death row prisoners across the country came from just 20 percent of counties, and most executions were produced by only 2 percent of counties.
Why these counties? Some are populous, which means that there are more murders that could qualify for death sentences and larger tax bases that can handle the high cost of capital judgments. Last year, a group of academics led by Frank Baumgartner of the University of North Carolina-Chapel Hill compiled a database of more than 8,500 death sentences handed down across the country since 1972. They found that counties where lynching was carried out during the Jim Crow that was in the early 20th century were also more likely to sentence people to death today. The results are in line with other studies showing racial disparities on death row, as well as the greater likelihood of a death sentence when the victim is white.
But perhaps the most important factor, in any individual case, is also the simplest: who is the prosecutor?
Even if Colorado had not abolished the death penalty last year, Alissa would almost certainly have avoided that fate. Although he is accused of killing 10 people at a Boulder grocery store on March 22, voters and elected officials in Colorado’s liberal county, where he was arrested, have long opposed the death penalty. The current district attorney even urged President Joe Biden to close it at the federal level.
Long faces in two different counties in Georgia. He allegedly killed four people in Fulton County, which includes a large urban area of Atlanta and where last year all three candidates for district prosecutors pledged never to seek the death penalty. There has been a political shift towards the death penalty in many large urban counties, including Philadelphia and Los Angeles.
“What you see is a broad consensus among prosecutors that the death penalty is immoral, is not worth the funds, or that it offers a limited benefit to public security,” said Amanda Marzullo, a defense lawyer and a punishment policy expert. Texas death. “In fact, there are only about 25 counties across the country where the death penalty is required on a regular basis.”
Long also reportedly killed four people and injured a farm in Cherokee County, which never sent anyone to death row. The county has a Republican district attorney, Shannon Wallace, who pledged in a press release to prosecute the murders “to the fullest extent of the law”. It is not yet clear whether Long’s case qualifies for a death sentence. A spokesman for Wallace did not rule out the possibility and stressed that the crimes are still under investigation.
Much about the case – whether more accusations are coming, whether the victims’ families are going to fall publicly in one way or another – is still unknown and local observers are predicting a “tug of war” between prosecutors.
“Prosecutors seek death in only a small fraction of the cases,” said Anna Arceneaux, executive director of the Georgia Resource Center, who defends people on death row in the state. “This results in geographical disparities not only between states, but also between judicial circuits within Georgia itself.” She said prosecutors should also consider Long’s mental and historical health, as well as whether the costs of a death penalty trial could be used to “prevent further violence against Asian Americans.”
Wallace’s office does not have a long history of death sentences. Scholars have found that the best way to predict whether a county will seek death is if it has done so before. “Once a county follows the death sentence, it gets better at it,” said Baumgartner. Prosecutors use previous decisions as comparisons; if the county has sent many people to death row, the barrier may appear lower.
This is probably the case in Orange County, California, which has sent more than 80 people to death row since the 1970s, according to Baumgartner’s data. The county has been responsible for two of the state’s 13 executions in the past half century, and district attorney Todd Spitzer campaigned against the state’s moratorium on executions.
In a historic 2015 death penalty case in Oklahoma, United States Supreme Court judge Stephen Breyer wrote in his dissent that the death penalty today can violate the Constitution because it is “arbitrarily imposed” from place to place. . He cited research that suggests that death sentences can be explained by the fact that defense lawyers have adequate funding or that judges have faced political pressure. One scholar uses the phrase “local muscle memory” to describe how various factors are informed to each other, creating feedback loops.
Judge Antonin Scalia discredited the works that Breyer cited as “abolitionist studies”. But former Texas prosecutor Lynn Hardaway pointed out that geographic disparities can also be a problem when considering justice for victims, who do not “have the luxury of deciding” where they will be killed.
Some prosecutors accept the disparities. “The prosecution is, and must be, a local issue,” said Johnny Holmes, the former district attorney for Harris County, Texas, noting that the 10th Amendment to the Constitution delegates powers to the states. “That is why I would not be going on national television on the subject. It is nobody’s problem, only Texans. “
Holmes’ own office was famous for its culture of seeking death in the 1980s and 1990s, when Houston became the “capital of capital punishment”. Holmes handed out syringe pens, and his promoters who won death sentences joined an informal “Sociedade Agulha de Prata”.
“You will receive disparate judgments in similar cases across jurisdictions,” said Shannon Edmonds, a lawyer with the Texas District and County Attorneys Association. “But if each of these local communities thinks that these sentences are a fair result, then it is serving justice at the micro level, even if there are disparities at the macro level. “
In theory, some of the geographical disparities could be mitigated by the Department of Justice, which can prosecute death penalty cases in any state for federal crimes. Instead of making the punishment more just, however, a study showed that there are geographical and racial disparities in those who also receive federal death sentences.
It is too early to say whether federal prosecutors will attempt to define any of the shootings as a federal crime, but there are many precedents: after the Boston Marathon bombing, they sought the death of Dzhokhar Tsarnaev, although Massachusetts does not carry the death penalty. They then sought Dylann Roof’s death for killing several worshipers in South Carolina, although he could have faced the same punishment in a state court.
These cases took place under President Barack Obama, even when he expressed doubts about the final punishment. We still don’t know much about the Biden government’s approach to the issue, although he has pledged himself in the election campaign to work to end the practice. More mass shootings are sure to test that promise.